RAJKUMAR AGARIYA Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This appeal arises out of the judgment of conviction and order of sentence dtd. 23/12/2021 passed by the Additional Sessions Judge, F.T.S.C. (POCSO), Manendragarh, District Koriya (C.G.) in Special Criminal Case No.17/2019 convicting the accused/appellant under Sec. 376 (2) (n) of the Indian Penal Code (IPC) and sentencing him to undergo R.I. for 14 years and pay fine of Rs.1000.00, in default of payment of fine amount to further undergo additional R.I. for one year.

(2.) Brief facts of the case are that the Prosecutrix (PW/3) had gone to her sister's house namely Bela Kunwar (PW/5) at Charcha as her sister had delivered a child, where she stayed for around one months to assist her in household work. During her stay in her sister's house, she came into contact of the accused/appellant, who was residing near the house of Bela Kunwar (PW/5), sister of the prosecutrix. The accused/appellant used to entertain/molest the prosecutrix and asked the prosecutrix (PW/3) that he likes her very much and after 2-3 days, when the Prosecutrix (PW/3) was sleeping in varandah at night, and her sister was sleeping in another room, the accused/appellant came there, removed her undergarment, gagged her mouth and committed forcible sexual intercourse with her extending life threat if she disclosed the incident to anyone. The accused/appellant used to come to Prosecutrix (PW/3) after an interval of 1-2 days and used to commit forcible sexual intercourse with her. After staying for about one month in her sister's house, she came to her village at Gudaru and after passage of seven months, she developed abdominal pain, thereafter, PW/1, mother of Prosecutrix, took her to Rambai (PW/4), who after touching the abdomen of Prosecutrix (PW/3) confirmed that the Prosecutrix is pregnant and on 4/11/2016 she delivered a child, who died after 10-15 minutes. Thereafter, on a complaint of Prosecutrix (PW/3), FIR (Ex.P/2) was registered on 7/11/2016 against the accused/appellant for the offence punishable under Sec. 376 (2) (f) (i) (n), 506 of the Indian Penal Code (for short IPC) and Sec. 5 (j) (ii) (l) of Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act'). After obtaining consent of the Prosecutrix (PW/3) vide Ex.P/3, on 7/11/2016, she was medically examined by Dr. (Ms.) Archana Kumhare (PW/21) vide Ex.P/18, who opined that secondary sexual characters were not fully developed, axillary and public hair not developed, breast milk discharged present with tenderness, old hymens were torn, pain in vagina. Accused/appellant was also medically examined by Dr. Satyanarayan Gupta (PW/10) vide Ex.P/14, who opined that the accused/appellant is competent enough to do the sexual intercourse. Spot map was prepared vide Ex.P/5. Consent letter of father of Prosecutrix for DNA test was obtained vide Ex.P/1. Dead body exhumation panchanama for taking DNA sample of child of Prosecutrix was prepared vide Ex.P/8. Dead body was exhumed and dead body buried panchanama was prepared vide Ex.P/9. Seized articles i.e. slides and panty were sent for chemical examination to FSL, Ambikapur, Surguja and FSL report was obtained vide Ex.P/ 17, which do not confirm presence of human sperm on seized articles. DNA report of prosecutrix and accused/appellant was obtained vide Ex.P/33, according to which, no definitive conclusion could be given as all markers of DNA profile of Ex.C (086) were disintegrated. After investigation, charge sheet was filed against the accused/appellant under Ss. 376 (2) (f) (i) (n), 506 of IPC and Sec. 5 (j) (ii) (l) and 6 of POCSO Act, however, the trial Court has framed the charges under Sec. 376 (2)(n) IPC and Ss. 4, 6 of POCSO Act.

(3.) So as to hold the accused/appellant guilty, the prosecution examined as many as 23 witnesses. Statement of the accused/appellant was also recorded under Sec. 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case, pleaded innocence and false implication.